DEL CONTRATO DE LOS TRABAJADORES PORTUARIOS EVENTUALES 1 GENERALIDADES.

The term “political will” is frequently invoked in political and social discourse but its precise meaning is as ambiguous as it is elusive. Notwithstanding the fact that it is frequently referred to as the “slipperiest concept in the policy lexicon”188

, it is submitted that the concept of political will can be formulated in a particular context with reference to specific indicators. For purposes of this paper two indicators are used to measure political will in the context of ATI. These are the mindset of political role players and the resource commitment and willingness to resolve and counteract implementation problems.

4.3.1.1 The absence of an ATI “mindset”

As illustrated in Chapter 2 above, the liberation movement recognised early on that the right to ATI was a fundamental building block in the foundation on which to build a new democratic South Africa.189 Thus notwithstanding the fact that there was during the demise of Apartheid a “global constitutional imperative” pushing for and driving the adoption of ATI laws worldwide”, there was a strong internal political campaign for its inclusion as a right in the Bill of Rights.190 However, the commitment to a right to ATI must be framed within the context of the broader fact that stepping out from the shadow of Apartheid required political commitment to democratic ideals that reached far beyond ATI.191 As such by the time PAIA was being formulated the political commitment to the concept of ATI was perhaps not as robust as before and the main driver for a strong piece of legislation came in fact from a vociferous and committed civil society coalition.192 Thus while the impetus for the inclusion of ATI as a constitutional right may have been political, the driving force for legislation to give effect to the right seems to have lacked political buy- in and political leadership was “conspicuous by its absence”.193

It would appear that the lack of political will at the stage of formulation of PAIA has carried through in the implementation of the Act. To date, a decade since the passing of PAIA, it is difficult if not impossible to identify any champions of the legislation. This is evidenced by the general lack of attention to PAIA or the right to ATI on the public platform, the general unawareness by politicians of the state of implementation and in some cases an outright

188 _{Hamergen, Linn “ Political Will, Constitutency Bilding and Public Support for Rule of Law Programes” (1998)}

The US Agency for International Development, available at www.pdf.usaid.gov/pdf_docs/PNACDO23.pdf

[accessed 16 September 2010].

189 _{Puddephatt, Andrew “Exploring the role of Civil Society in the Adoption of Access to Information Laws: The}

Cases of Bulgaria, Italy, Mexico, South Africa and the UK”, (2009) World Bank Institute: Access to Information

Working Paper Series, available at

http://siteresources.worldbank.org/EXTGOVACC/Resources/atICivSocietyFinalWeb.pdf [accessed 10 May

2010]. 190 Calland 2009, 2. 191 Puddephatt 2009, 29. 192 Calland 2009, 4. 193

Neuman & Calland 2007, 13.

display of contempt toward the right. In 2003, the then Justice Minister, Penuell Meduna, informed a visiting contingent from Armenia that his Department was fully complying with PAIA and had not been the subject of any appeals. On the contrary his Department had faced by that point numerous appeals against refusal and was the subject of two pieces of litigation under the Act.194 This general ignorance is indicative of the value placed on PAIA by those in power. But perhaps worse than ignorance is the contempt against which some politicians appear to have for PAIA and the right to ATI. Richard Calland‟s encounter with a senior government source in 2009 crisply illustrates the lack of commitment towards the concept of ATI as a whole. According to the official, “when Cabinet looks out of the window what it sees is the (ATI) law being used by its political enemies to embarrass it.”195

Clearly there is a sense of doom associated with PAIA – a realisation that whilst access is a fundamental human right and essential for democracy it is also a means by which political accountability is thrown into the spotlight and where politicians are forced, perhaps to their detriment, to reveal what they would prefer not to.

It would seem that this „contempt‟ for ATI as a means of accountability is finding expression in the push by the ANC for the adoption of the Protection of Information Bill or Secrecy Bill as it is commonly referred to.196 The Bill gives any state agency, government department and even parastatals the ability to classify information as secret if it is in the „national interest‟. 197

It will thus in effect be possible for the State to curtail access to commercial information and information on service delivery. More harrowing is the fact that anyone involved in the „unauthorised‟ handling and disclosure of classified information can be prosecuted and face a jail term. Notwithstanding a plethora of objections to the Bill from civil society, the media and ordinary South African‟s during public hearings, the Chief State Law Advisor has “declared the bill fully constitutional and has dismissed some of the submissions as “emotional and hysterical”.198

Whilst an analysis of the Secrecy Bill is beyond the scope of this paper, what is important is the fact that it is widely perceived as limiting and severely undermining the right to ATI as enshrined in the Constitution – this view of the Bill has been formally endorsed by more than 400 organisations and a host of well known South African academic, business, literature and media personalities. Yet despite this, the ANC has done little, in the way of reassuring the South African public that the Secrecy Bill is not designed to nor will it hamper the right to ATI. Instead in response to criticisms that the Secrecy Bill was reminiscent of Apartheid era 194 Ibid 13. 195 Calland 2009, 10. 196

Protection of Information Bill 6 of 2010.

197 _{Dario Milo “State Secrecy Bill Returns, Worse than Ever” (2010), available at}

http://www.timeslive.co.za/sundaytimes/article543611.ece/State-secrecy-bill-returns-worse-than-ever [accessed 2 October 2010].

198 _{Hartley Windham “Secrecy Bill Declared Fully Constitutional” (2010) available at}

http://allafrica.com/stories/201007280182.html [ accessed 3 August 2010].  

secrecy legislation, President Jacob Zuma could only muster a defensive response and stated that such comparison is “preposterous, disingenuous and an unbelievable insult.” The ANC is in short missing a valuable opportunity to, within the context of the current debate on media freedom, to clearly pronounce on and commit itself to the notion of ATI as a right.

4.3.1.2 Resource allocation and the commitment to operationalising PAIA

In 2009, Helen Zille stated at her inauguration as Premier of the Western Cape that “we will devise ways of letting the sun shine into our administration, and of making accurate information on our activities more easily accessible to citizens, not only so that we are held more accountable, but so that we can jointly address the obstacles that stifle development

and retard progress”.199

This impassioned rhetoric seemed to indicate a political willingness and the correct mindset needed to ensure that the right to ATI was promoted and protected within the PGWC Administration. However, mindset alone is not sufficient and must be

coupled with the provision of sufficient and committed resource allocations.200 Despite this, to

date, no department in the PGWC has a dedicated PAIA unit or staff with a separate budgetary allocation to administer the Act.

The „piggy-backing‟ of the implementation of PAIA within the resource constraints of other programmes and initiatives is not unique to the PGWC and instead appears to be replicated throughout the public sector. The 2009 GKA Survey revealed that 29 of the 33 respondents achieved a score of 5 or less out of a possible 11 for the category of resource allocation to PAIA - a clear indication of the lack of financial commitment to the operationalising of

PAIA.201 However, financial commitment is only one aspect of ensuring that PAIA is properly

operationalised. Even with limited or no funds steps can be put in place to give better effect to the Act. In the Department of the Premier of the PGWC, all PAIA requests are processed by the Chief Directorate: Legal Services yet the directorate does not even have a dedicated filing system to track these requests. Instead PAIA matters are allocated a general LO (Legal Opinion) reference number making it an extremely difficult task to quickly uplift all PAIA files for a specific period, especially where a legal advisor did not specifically make reference to PAIA in the title of the file. The simple allocation of specific file numbers, which will cost the department nothing from an administrative point of view, for PAIA requests will go some way in ensuring that a proper record is kept of the number of requests received and will make follow-ups of these requests easier.

It is off course arguable that the lack of resource allocation to the implementation of PAIA is attributable to the fact that public bodies are facing increasing social demands and worsening

199

Zille, Helen ,Acceptance Speech on Election as Premier of the Western Cape (6 May 2009) available at

www.capegateway.gov.za [accessed 14 August 2010].

200

Neuman & Calland 2007, 13.

201

Open Democracy Advice Centre 2009.

economies thus forcing them to service the needs of other programmes over and above the

implementation of an access regime.202 However, the simple sidelining of PAIA as a

legitimate programme is indicative of the failure of public bodies to appreciate its cost-benefit worth. Studies from around the world point conclusively to the fact that a strong access regime can reduce corruption and increase investment in the country as well as improve the

efficiency of government.203 However, in the absence of resource allocation and the

commitment to developing and maintaining systems (especially where such developments are affordable or can be made without a cost impact) to enhance PAIA delivery, it must be concluded that public bodies lack the political will to promote and protect the right to ATI.